August 12, 2009

Second District, Division 8 Volleys the Fee Request Back to the Lower Court.

The next case illustrates the practical dynamics of appellate court practice: if you are going to request the appellate court to award fees to you as the prevailing party, provide specific authority supporting such a request. Otherwise, the request will be denied and returned to the lower court to sort out whether fees are justified and then determine the reasonable amount of fees to be awarded. That is exactly what happened in Campos v. Oppenheimer Funds Distributor, Inc., Case No. B201789 (2d Dist., Div. 8 Aug. 12, 2009) (unpublished).

In Campos, the Court of Appeal dismissed an appeal of a nonappealable order of dismissal in an action that also contained an interpleader cross-complaint. The winning respondent on appeal requested the appellate court to award it costs and attorney’s fees as the prevailing party. Although finding that respondent was entitled to an award of routine appellate costs, it failed to provide the appellate panel with clear authority as to why it was entitled to an award of attorney’s fees on appeal. Given this situation, what did the appellate court do? You guessed it. Respondent was awarded costs on appeal, but the matter was remanded to the trial court for purposes of determining if respondent was entitled to fees (and, if so, for the further purpose of setting the reasonable amount of fees to be awarded). The Court of Appeal denied respondent’s fee request without prejudice and punted the issue back to the lower court for assessment.

Lesson from this one—If you want the appellate court to find fee entitlement, make sure you provide them with particularized authority in the appellate briefing. Cursory references to statutes, without case authority showing why the statutes extend to fees on appeal, may result in what happened here: more work for the winning respondent before the trial court.